Victory In The LSAC Dispute

Victory In The LSAC Dispute

Scott

LaBarre

NFB Passes

the Test:

Victory in the LSAC Dispute

by Scott LaBarre

In the December, 1997,

issue of the Braille Monitor we reported that the National Federation of the

Blind had sued the Law School Admission Council (LSAC) on behalf of three blind

students: Ross Kaplan, Latonya Phipps, and Shannon Dillon. The suit alleged

that the Council violated the Americans with Disabilities Act by refusing to

allow blind students to use their own readers on the Law School Admission Test

(LSAT), by flagging the test scores of blind and visually impaired individuals

as "non-standard," and by refusing to allow one applicant to use her

Braille writer and scratch paper on the exam.

On Thursday, November 20,

1997, the three would-be law students (represented by the Federation) and the

LSAC struck a negotiated settlement which is a great victory for blind and visually

impaired students. Before discussing the particulars of the settlement agreement

itself, it is helpful to understand the history of this case.

In the fall of 1996 Ross

Kaplan and Latonya Phipps contacted the National Federation of the Blind regarding

problems they were having with the LSAT, and our staff recommended that Mr.

Kaplan and Ms. Phipps discuss the matter with me. Both individuals told me that

the Law School Admission Council had informed them that they could not use their

own well-trained readers to take the LSAT. The Council further informed them

that they would have to use readers selected by LSAC. In addition, neither Ms.

Phipps nor Mr. Kaplan would be permitted to screen their readers ahead of time

or practice with them. According to LSAC, allowing a blind student to use his

or her own reader or permitting any contact between reader and blind student

in advance of the examination would breach examination security. Mr. Kaplan

and Ms. Phipps both took the test under protest, and because of the arbitrary

and discriminatory reader policy, their scores suffered accordingly.

Shannon Dillon applied

to take the December, 1996, administration of the LSAT. She submitted her original

application requesting that the test be administered in Braille. A few weeks

later she phoned LSAC and informed officials that she needed to bring her Braille

writer and paper with which to take notes. LSAC denied her request, stating

that it was untimely. We argued with LSAC that it should allow the request,

but it held firm on its position. Ms. Dillon took the LSAT on December 7, 1996,

without the capacity to take notes though her sighted colleagues in the next

room were permitted to take as many notes as they desired. In February Ms. Dillon

took the exam again, and this time she was permitted to use her Braille writer.

Significantly, she achieved a much better score.

After the examination all

three students received copies of letters informing the law schools to which

they had applied that the test had been administered under nonstandard timing

conditions. Therefore LSAC could not predict the meaning of the score. This

practice is called "flagging," and it is a common practice throughout

the standardized testing industry. Here is the text of the LSAC flagging letter:

Dear Colleague:

This candidate took a 6/96

LSAT under nonstandard timing conditions in order to accommodate his or her

disability. The nonstandard test this candidate received was administered on

or about the same test date as the corresponding standard administration.

Because this candidate's

score was earned under nonstandard timing conditions, it is important to note

that the degree of comparability of this score to scores earned under standard

conditions cannot be determined. The LSAC's Cautionary Policies Concerning LSAT

Scores and Related Services explain:

LSAC has no data to demonstrate

that scores earned under accommodated conditions have the same meaning as scores

earned under standard conditions. Because the LSAT has not been validated in

its various accommodated forms, accommodated tests are identified as nonstandard,

and an individual's scores from accommodated tests are not averaged with scores

from tests taken under standard conditions. The fact that accommodations were

granted for the LSAT should not be dispositive evidence that accommodations

should be granted once a test taker becomes a student. The accommodation needed

for a one-day multiple choice test may be different from those needed for law

school course work and examinations.

If this applicant has consented

to the release of

information related to

his/her request for accommodations, information, including, but not limited

to the following: the type of accommodations provided, the LSAT Accommodation

Form, the LSAT Accommodations Request Verification Form, the Report of Assessment

(if applicable), Accommodations Granted/Testing/Time Tracking Form, and all

statements or documentation submitted by physicians or other licensed professionals

will accompany the Law School Report.

Test Administration

Law Services

That was the letter. On

a number of occasions we attempted to resolve all of these issues with LSAC.

It is generally prudent to negotiate in an attempt to resolve issues before

they become full-blown lawsuits. Unfortunately, LSAC officials refused to negotiate

on any of the points raised with them. We told them that they could not easily

dismiss our concerns. When attempts to negotiate met with no response, we felt

that we had no choice but to file a lawsuit against LSAC. As the December Monitor

spells out in some detail, we filed a lawsuit on April 4, 1997, in the United

States District Court for the Eastern District of Pennsylvania. Many news agencies

contacted us and thereafter ran stories on radio and in newspapers regarding

the suit. We made no attempt to publicize the suit. Reporters who routinely

cover the Philadelphia Federal Court noticed that the lawsuit had been filed,

and after that the calls came in steadily.

Many of the reporters asked

the question: if LSAC provides a reader, why should the blind test-taker care

who that reader is? The relationship between a reader and a blind person is

highly individual. Like sighted persons blind people develop particular methodologies

for reading certain items. Multiple choice examinations require different reading

methods from essay examinations. Timed tests call for much different strategies

than reading a series of letters in untimed situations. In other words each

blind person must train a reader to serve as his or her eyes. When preparing

for the LSAT, each sighted student develops a range of techniques for dealing

with the examination. Similarly a blind person must train his or her reader

to read the examination in a way that will be most efficient. This is particularly

true with the LSAT because it is a timed and high-stakes examination.

Put another way, it is

crucial that the blind person have control over and familiarity with the reader.

If the test-taker cannot establish an effective relationship, the results are

likely to be disastrous. Ross Kaplan and Latonya Phipps were not permitted to

meet with their readers ahead of time. They were thrown into a high-pressure

examination in which they could not concentrate on the test but rather had to

spend a considerable amount of energy and attention training a reader whom they

had never met. In addition, in some cases LSAC officials have found readers

who had never before read to a blind person. The problem has been further compounded

by the fact that at times LSAC has not secured a reader until a few hours before

the scheduled administration of the test.

Shannon Dillon faced an

entirely different problem. She was provided the examination in Braille, but

she was not permitted to use her Braille skills to take notes. Her sighted counterparts

were permitted to do so. Obviously this put Shannon Dillon at a great disadvantage.

These problems are at least

clear-cut, but the flagging issue is a very difficult one. On one hand, the

LSAC letter seems blatantly discriminatory. The letter in effect says that,

because we as blind people take the examination under accommodated circumstances,

our scores mean nothing. When I received my licenses to practice law, they were

not sent with an accompanying letter stating that I had earned my law license

under non-standard conditions and that the Board of Bar Examiners could not

predict my ability and competence to practice law.

On the other hand, LSAC

is technically correct. Council officials have conducted internal studies showing

that accommodated tests taken by blind and visually impaired students do not

predict their future ability to perform in law school, whereas tests taken under

non-accommodated conditions do predict the ability of sighted students in law

school. In fact, the blind and visually impaired students do better in law school

than their test scores would indicate. So, in other words, the LSAT is not a

fair and accurate test for blind and visually impaired students.

The problem is that with

very few exceptions law schools require that blind students take the examination.

Probably many law schools labor under the misguided belief that, since the advent

of the ADA, the LSAT is required to administer a fair test, and therefore scores

achieved by the blind must be accurate.

The issues raised in this

case are not the traditional ones present in most lawsuits. It is easy to understand

testimony about whether the light was green or red when the defendant ran through

the intersection, but it is far more difficult for a judge or jury to consider

particular accommodations and academic issues pertaining to the blind. After

all, blind candidates average only about 100 of the 155,000 individuals who

take the LSAT each year. Because the issues surrounding blindness are so little

understood in the community and by the courts, a judge or jury would have a

difficult time understanding the nuances of an LSAC-mandated reader as opposed

to a reader brought by the blind student. For these reasons we have always believed

that the issues surrounding the lawsuit would best be addressed through negotiation

and discussion. Ultimately, however, we had to sue to get LSAC's attention and

to demonstrate that we were serious about these issues. In the end it was a

negotiated settlement that resolved the issues in this case.

First, LSAC has agreed

to modify its reader policy. It still has the obligation to provide the reader,

but it must do so under some very specific conditions. The problem with LSAC's

reader policy in the past was that blind students had absolutely no control

over the accommodation they would use to take the exam. Now, when a blind applicant

requests the use of a reader, LSAC must provide the name of a reader in the

student's area within two weeks of the application. Subsequently the blind student

may screen and interview the proposed reader to determine whether he or she

is in fact qualified. Once the reader is agreed upon, the blind student may

practice and prepare for the exam with the reader for a minimum of five hours,

all at LSAC's expense. The reader and the blind student may practice more than

five hours, but the blind student is responsible for making such arrangements.

At any time before five days in advance of the exam, the blind student has the

right to reject any LSAC-designated reader, and LSAC has the obligation to find

another reader.

In negotiating the settlement,

we pointed out to LSAC that it would be far easier for officials simply to allow

blind students to bring their own readers. If that were the case, LSAC would

not have to bear additional costs and establish a new layer of bureaucracy.

LSAC acknowledged this point but still insisted that it must have some control

over the process to maintain the integrity of the examination.

Incidentally, no other

large testing organization currently requires that the blind candidate use the

entity's reader. All other major testing organizations, as far as we know, permit

the blind student to use his or her own reader. Apparently these organizations

do not believe that allowing blind individuals to use their readers of choice

violates the security and integrity of their examinations.

The agreement also calls

for the Federation and LSAC to work together to identify pools of qualified

readers throughout the country. In other words, we can have a direct influence

upon the quality and ability of the readers available to us.

Overall I believe the settlement

is a good one. It puts a great deal of control back into the hands of blind

students. Now a blind applicant who wishes to use a reader can hand-pick the

person. In addition the LSAC will allow the reader and the blind applicant to

practice and prepare for the examination ahead of time. In other words, the

blind student can instruct and train the reader on how to read the examination.

The settlement also makes

it clear that blind and visually impaired candidates may bring a Braille writer

and scratch paper as long as the LSAC is informed of this plan ahead of time.

The Shannon Dillon incident was a mistake, and in fact LSAC corrected that mistake

only a few months later. However, it is now clear that LSAC must allow blind

people to use Braille devices to access the examination effectively.

Finally, the agreement

states that the Federation and LSAC will continue discussing the flagging letter.

We intend to urge LSAC to gather the data that will allow the Council to issue

a more accurate letter reflecting the blind individual's ability. It is not

fair to any student to say that he or she has worked hard to take the examination

but that the score means nothing. If we are required to take standardized examinations,

we should have the right to expect that our scores mean something.

The whole area of validating

standardized examinations is in flux. Many researchers and experts are spending

considerable energy and resources on determining how to validate scores achieved

under non-standard conditions. We will continue advocating for a fairer and

more nearly equal system.

The fact that LSAC has

agreed to a continuing dialogue with us is a major victory. When we first began

this long and arduous process, LSAC exhibited no willingness to consider the

topic at all. As happened when we originally filed the suit, this settlement

has attracted a good deal of attention in newspapers and journals across the

country. Here is the article which appeared in the November 25, 1997, edition

of the Chronicle of Higher Education.

Lawsuit Charging LSAT Sponsor

with Bias

Against Blind Test-Takers

Is Settled

by Karla Haworth

The sponsor of the Law

School Admissions Test last week agreed to allow blind and visually impaired

students to meet test readers and practice with them before taking the test.

The agreement settles a discrimination lawsuit filed in April by the National

Federation of the Blind.

The lawsuit charged that

three blind students had been prevented from using their own readers and note-taking

equipment while taking the Law School Admissions Test, which is administered

by the Law School Admission Council.

The students said they

had scored poorly on the LSAT because they had not been able to use their own

readers and sought a court order prohibiting the Council from discriminating

against blind test-takers.

The council refuses to

allow blind students to take the test with their own readers to guard against

cheating. But like sighted people, blind students develop strategies for taking

tests, and their readers must be familiar with those strategies to avoid wasting

test time, said Scott LaBarre, a lawyer for the Federation.

Mr. LaBarre said that before

the agreement, blind students "had no control" over their tests. Test-takers

would not know who their readers would be until the day of the examination.

Mr. LaBarre said that in some cases students had been assigned readers who had

never worked with a blind person before.

"It's a high-pressure

test, so trying to train somebody to read for the first time was a horrible

distraction," he said.

Joan Van Tol, a lawyer

for the Council, said that, before the lawsuit was filed, the Council had never

received complaints from blind people about their readers. The Council does

not, however, require its readers to undergo any special training, she said,

and in any event readers are rarely requested.

Under the agreement reached

Thursday, the Council will establish a new policy on blind test-takers. Under

that policy blind people who take the test will be able to meet beforehand with

the readers to discuss test-taking strategies and to take a practice test. The

readers will continue to be appointed by the Council. The test-takers may also

bounce readers who they feel are unqualified, Mr. LaBarre said.

"The people who are

most expert about readers for the blind are blind people themselves," Mr.

LaBarre said. "This policy recognizes the fact that we're the ones with

the expertise in this area."

The Council and the Federation

also agreed to discuss the Council's "nonstandard" test-administration

policy, which the Federation believes is discriminatory. Under that policy the

Council alerts recipients of scores that the test was given under nonstandard

conditions—including the use of a reader. Letters that accompany the scores

should be interpreted with "great flexibility and sensitivity," said

Ed Haggerty, a spokesman for the Council.

Philip D. Shelton, the

Council's president, said he was pleased with the agreement.

"Our goal has always

been to make certain that the scores we report reflect the abilities of the

individual test taker and not the person assisting him or her," he said.

"I believe that today's agreement meets everyone's goals."

Because this settlement

has very real implications for every blind or visually impaired person hoping

to attend law school, we are also reprinting here the text of the settlement

agreement's pertinent sections so that blind students and other interested people

can read the precise language.

ORDER

AND NOW, this 20th day

of November, 1997, upon consideration

of the Settlement Agreement

and Stipulation for Dismissal entered

by the parties and appearing

of record,

IT IS ORDERED that the

above-captioned action is dismissed pursuant to Local Rules of Civil Procedure

41.1(b) under the condition stated in the Settlement Agreement.

BY THE COURT:

IN THE UNITED STATES DISTRICT

COURT

FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

ROSS KAPLAN, LATONYA PHIPPS,

AND SHANNON DILLON, Plaintiffs,

NO.: 97-CV-2350

LAW SCHOOL ADMISSION COUNCIL,

a Delaware Corporation doing

business in the Eastern

District of Pennsylvania, Defendant

SETTLEMENT AGREEMENT

The parties to the above-captioned

action, being Ross Kaplan, Latonya Phipps, and Shannon Dillon, plaintiffs, and

the Law School Admission Council, defendant, hereby enter the following Settlement

Agreement:

1. LSAC READER POLICY As

referred to herein, the term "LSAC" shall refer to the

Defendant Law School Admission

Council; the term "LSAT" shall refer to the Law School Admission Test;

and the term "Applicant" shall refer to persons who apply to LSAC

to take the LSAT.

Subject to the provisions

contained herein, only persons supplied by the LSAC may serve as Readers of

the LSAT to blind and severely visually impaired applicants. Defendant hereby

agrees to modify its policies and practices with respect to providing reasonable

accommodations to blind and severely visually impaired applicants who take the

Law School Admission Test, with respect to LSAC's provision of readers. Within

fourteen (14) days following receipt of a written request from any blind or

severely visually impaired applicant for the Reader accommodation, LSAC shall

provide the name, address, and telephone number of a LSAC-provided Reader to

the applicant. It thereafter shall be the responsibility of the applicant to

screen the Reader to determine whether he or she is acceptable as a Reader for

the applicant. The applicant may reject use of the proposed reader provided

by LSAC, upon written notification to LSAC, whereupon LSAC shall provide the

name, address, and telephone number of a substitute Reader.

Prior to five (5) days

before the scheduled administration of the LSAT, the applicant may reject Readers

proposed by LSAC. Should the applicant reject a proposed LSAC Reader five (5)

or less days before the scheduled administration of the LSAT, LSAC shall make

all reasonable efforts to provide a substitute Reader to the applicant.

Blind and severely visually

impaired applicants may arrange to meet with their assigned Reader to become

acquainted with the Reader, familiarize themselves with these guidelines, review

the procedures to be followed during the administration of the LSAT, and schedule

practice sessions as hereinafter described.

LSAC agrees to engage in

a coordinated effort with the National Federation of the Blind to identify readers

and pools of readers in various geographical locations and LSAT sites within

the United States of America.

2. PRE-LSAT PRACTICE LSAC

agrees that Readers provided under this Reader policy shall be made available

to prepare for the LSAT with the applicant, for a minimum of five (5) hours.

Nothing in this agreement shall prohibit the applicant and Reader from arranging

for additional practice sessions at the applicant's expense, if any. It is understood

and agreed between the parties that the unavailability of the Reader to meet

with the applicant beyond the five (5) hours set forth above shall not be grounds

for the rejection of a Reader by the applicant. The practice sessions between

the applicant and the Reader may be utilized for taking practice tests or, at

the applicant's discretion, in any other reasonable way to prepare with the

Reader for the LSAT.

3. ADMINISTRATION OF THE

TEST Readers supplied to blind and severely visually impaired applicants shall

be instructed to read the test verbatim and will not be permitted to paraphrase,

interpret, modify, or otherwise vary from the text, except as set forth herein.

The Reader shall not define words; however, Readers may, at the request of the

applicant, spell words and re-read all or part of the text or questions within

the section that is being performed. While all portions of the test must be

read verbatim by the Reader, the applicant will be permitted to direct the Reader

to specific portions of the test to be read or re-read, including the order

in which the text is to be read, and also will be permitted to direct the Reader

to scan for particular words or phrases as specifically identified by the applicant

to be read or re-read verbatim, as well as to identify the type and location

of punctuation marks contained in the text.

4. ADDITIONAL ACCOMMODATIONS

Nothing contained in this Agreement shall limit the availability of other reasonable

accommodations to be supplied by LSAC under the Americans with Disabilities

Act, as requested and supported by documentation supplied by the applicant.

LSAC will allow applicants to utilize audiocassette, Braille, or large print

versions of the test and applicant-provided Braille scratch paper and Braille

writers in taking the LSAT, as requested and supported by documentation supplied

by the applicant. LSAC will encourage all blind and severely visually impaired

applicants requesting any accommodation to submit their request for accommodations

as early in the registration process as possible. LSAC shall provide a copy

of its Reader policy upon request.

5. LSAC NONSTANDARD ADMINISTRATION

LETTER LSAC agrees that, at the request of the National Federation of the Blind

(NFB), it will meet with and consider NFB's views regarding the language that

accompanies the flagged test scores of blind and severely visually impaired

persons.

Respectfully submitted,

Attorneys for Plaintiffs

Scott C. LaBarre, Esquire

Martin J. King, Esquire

Attorneys for Defendant

EASTBURN & GRAY, P.C.

Joanne D. Sommer, Esquire

Joan Van Tol, Esquire

In 1940, when the National

Federation of the Blind came into being, it created only a ripple in the blindness

field. Today we send tidal waves of change throughout the blindness community.

The LSAC settlement represents another milestone on our journey. We forced an

organization that refused to give the blind any control or self-determination

to allow a significant measure of control. With LSAC's renewed commitment to

provide quality, equal treatment to the blind, I am confident that we will forge

new agreements in the future that will insure even better treatment of the blind

in the standardized testing arena.

In the past, the future

of the blind rested almost exclusively in the hands of others. Today we control

our own destiny. The victory we have achieved in the LSAC case reflects our

increasing strength in the blindness field. Because of our work people realize

that the blind truly speak for themselves. When matters arise concerning the

blind, it is best to consult the blind before taking any action. Without the

National Federation of the Blind, LSAC would still have the power to dictate

to Ross Kaplan, Latonya Phipps, Shannon Dillon, and every other blind student

exactly how the LSAT would be taken. Because of the National Federation of the

Blind, the trend has been reversed, and we have assumed control over our own

futures.

As Dr. Jernigan has said,

we change what it means to be blind by individual actions collectively focused.

Through the single action of suing LSAC, we have expanded the rights of blind

students in our continuing effort to achieve equal access. When we help one

segment of our community reach new heights of independence and equality, all

of us climb one step closer to true equality and freedom in the world. That

is why we have formed the National Federation of the Blind.